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Nate Kaczmarek: Welcome to “A Seat at the Sitting” for March 2024. This afternoon we are pleased to feature an all start lineup of legal experts to help us navigate the upcoming Supreme Court docket in 90 minutes or less. My name is Nate Kaczmarek, and I’m happy to serve as Vice President and Director of Practice Groups for the Society. Before I introduce today’s moderator, please note that FedSoc is not an advocacy organization and all expressions of opinion on our program belong to our presenters. I’m delighted that we could invite a great attorney and friend of the Society to moderate this session. Michael Francisco, how are you this afternoon?
Michael Francisco: I’m doing great. How are you?
Nate Kaczmarek: Very well. Again, delighted to have you with us. Michael is a partner at McGuireWoods with their Government Investigations and White Collar Practice. He has extensive appellate experience before courts of appeals at every level. Prior to McGuireWoods, he was in private practice. Michael has served as a Supreme Court law clerk for Justice Neil Gorsuch and as a law clerk for Judge Timothy Tymkovich in the U.S. Court of Appeals for the Tenth Circuit. He is a graduate of Hillsdale College, go Chargers, and Cornell Law School.
More complete bios for Michael and our distinguished panel are available for your review on our website, fedsoc.org. Our panel will cover the upcoming cases, and as always, we’ll go to audience Q&A. So please prepare your questions in advance. If you joined us via Zoom, our questions can be submitted with the Q&A function at the bottom of your screens. And we will do our best to answer all the questions that are submitted during the 90 minutes allotted. Now that the table is partially set, Michael, thanks so much for your help today. I will turn it over to you.
Michael Francisco: Thanks, Nate, for that very kind introduction. For today’s “Seat at the Sitting” we’re going to walk through the cases in the order they’re scheduled for argument because the very overworked and busy Supreme Court has granted ten arguments for the month. We will have ample time to discuss those cases with our panelists, who I’ll introduce as we walk through the cases. And then we’ll get to question and answers after we go through those cases. So starting out, the first case to be argued this month is Bob Corn-Revere. He’s the Chief Counsel at the FIRE, which is the Foundation for Individual Rights and Expression, and he’ll be talking to us about two cases, the Murthy v. Missouri case, as well as the NRA v. Vullo (sic) case.
Robert Corn-Revere: Well, thank you, Michael, and thanks to The Federalist Society for inviting me to talk about those cases. They’re the first -- well, actually, they’re first up on Monday. They are part of what promises to be a blockbuster term for First Amendment law and also part of a recent trend at the Court where they will take cases essentially in pairs to address significant issues.
The two issues that will be front and center on Monday are whether or not government pressure and either through coercion or through excessive cooperation can be a violation of the First Amendment, even where there isn’t sort of a formal regulatory structure. And in the second of those cases, it involves that essential question that is applied to putting pressure on internet social media platforms. I’ll talk about the Murthy case first.
This is Murthy v. Missouri. This is the case involving allegations that the Biden administration inserted itself into the everyday moderation decisions of social media platforms. It was a product more or less of the Twitter files, which had revealed a lot of the activity that was taking place behind the scenes, either to get social media platforms to play down certain kinds of information, whether it was related to the pandemic or national security or just information that was considered to be disinformation. The administration took the position that the platforms should take a more active role, and they had definite suggestions on how those moderation decisions should be made. This was presented first -- at least the activity was first subject to a rather broad injunction from the district court that was somewhat narrowed by the Fifth Circuit.
So the question is whether or not the White House and other Executive agencies were exerting excessive pressure. This builds on a line of precedents going back 60 years to Bantam Books v. Sullivan, which is a landmark Supreme Court decision from 1963 that said that informal pressure can result in violations of the First Amendment, even without formal regulation. And in fact, in some ways it’s even more threatening because you don’t have the protections of due process where you have this kind of informal mechanism.
One sort of unique feature of this case is that it’s not often that state attorneys general will claim to be champions of the First Amendment, but two of the lead plaintiffs in the case were state AGs, who as we point out in the amicus brief actually themselves engage in certain of these kinds of jawboning tactics as well. And so this will be part of a trilogy of issues that are coming to the Court this term involving the relationship of government and social media platforms. Just a few weeks ago, we had the oral argument in the NetChoice cases involving direct regulation of platforms based on state laws in Texas and Florida. And that’s on tap for this term. Earlier, and I think it was argued in October, cases of Lindke v. Freed and O’Conner-Ratcliff v. Garnier, which raised the question of when public officials use their private social media accounts for state business, whether or not that constitutes state action. So all of those cases are dealing with interrelated issues, all of them before the Court this term.
The other argument that is on tap for argument on Monday is National Rifle Association v. Vullo. This case involved allegations that the New York Superintendent of the Department of Financial Services had engaged in a number of activities threatening financial institutions and insurance companies in New York suggesting that they should not do business with the National Rifle Association because of their political position supporting gun rights. This was effectuated through a number of ways, including direct threats, through incorporating certain conditions into consent decrees and so on. The district court found that it was a violation, or at least a likely violation, of the First Amendment and issued an injunction, but that was reversed on appeal. So the Court has accepted certiorari on that and will be hearing that case and will be hearing the argument on the same day as Murthy v. Missouri.
Michael Francisco: Thanks, Bob. We appreciate those summaries of those two cases. I would just note as a fun fact that in the NRA case a good friend of the Society and First Amendment scholar Eugene Volokh is briefed and is going to argue on behalf of the NRA, and I can’t help observe that your note about the Court scheduling cases in pairs struck my ear. When I clerked on the Court, we would often make the same observation, and it was a bit of a parlor game to see if we could guess what the theme was for certain pairs of cases.
Robert Corn-Revere: Well, if I could just --
Michael Francisco: Some are more obvious than others.
Robert Corn-Revere: If I could just add to that, not only is the Court accepting these cases in pairs; it is also having participation by the federal government where the Solicitor General has filed briefs in each of these cases and will have argument time, which is something that has been consistent in these First Amendment cases across the board.
Michael Francisco: Yeah. It looks like the Solicitor General has a very busy month from what I can tell in this particular docket. The next case to be argued I’ll provide a brief summary of, Diaz v. United States, and the question there is whether prosecutors in a drug trafficking case can call a government witness to provide expert testimony to rebut a defendant’s contention that she did not know she was carrying drugs. It’s a border apprehension case.
Ms. Diaz was driving a car that was not hers and was apprehended shortly over the border and was carrying 28 kilos of meth, which she eventually received seven years sentence for. And the government called a border patrol expert to testify to the modus operandi, essentially saying that in his experience drug traffickers don’t allow blind mules for such large quantities of drugs. I suppose 28 kilos of meth counts as a large quantity. She herself had first called an expert to testify that there were blind mules, and this is an appeal from a Fifth Circuit case, a Judge Garza decision -- I’m sorry, this is an appeal from a Judge Bea and Ikuta decision in the Ninth Circuit. And it actually splits with a previous decision from Judge Garza from 2002.
And then the fourth case of the month will be Truck Insurance v. Kaiser Gypsum Company, and the question there is whether an insurer with responsibility for a bankruptcy claim is a party in interest that can object to the plan of the organization under Chapter 11 of the Bankruptcy Code. I don’t have as many fun facts for that case. It’s an appeal from a Fourth Circuit decision. Friend of the Society Allyson Ho is arguing for the insurer against Kevin Marshall from Jones Day. And I note that there are only seven amicus briefs in the case, rather light for this month, but it does have an amicus from the Solicitor General. And it looks to me like Justice Alito is recused from this particular case.
We’ll move on now to the fifth case to be argued, and I’ll hand it over to Brett Nolan. He’s a senior attorney at the Institute for Free Speech -- to talk to us about Gonzalez v. Trevino.
Brett Nolan: Thank you and thank you to The Federalist Society for hosting this event. Gonzalez v. Trevino is the latest iteration in the Supreme Court’s attempt to define the contours of a retaliatory arrest claim under the First Amendment. There are two questions presented in this case, but both basically boil down to asking when the existence of probable cause is enough to bar a plaintiff from bringing a claim for retaliatory arrest at all. And this question or some iteration of a similar question has come up several times at the Court over the last few years. I think this might be the third case since 2018 that the Court has addressed this sort of issue.
The background of Gonzalez is a case called Nieves v. Bartlett, which is a 2019 case in which the Supreme Court held that probable cause bars retaliatory arrest claims most of the time unless the plaintiff could establish that other individuals who had not engaged in protected speech also broke the law but were not arrested. In particular, the plaintiff had to establish that with objective evidence. The two questions in Gonzalez basically boil down to asking whether Nieves applies to all retaliatory arrest claims, and if so, what kind of evidence can the plaintiff rely on to prove that she was treated differently from those individuals who were not arrested for breaking the same law?
So this case comes to the Court on an interlocutory appeal from a motion to dismiss out of the Fifth Circuit. In a 2-1 decision the court held that the plaintiff’s claims were barred, and the Fifth Circuit denied en banc in a 10-6 vote. So Judge Oldham dissented on the panel, and then Judge Ho dissented from the denial of en banc.
The facts of this case, real quickly, the plaintiff was an individual who was sort of a frequent critic of her local government, and she tried to have a petition to remove the city manager. And she came to the city council meeting to speak about it, and after the meeting, according to her complaint, she accidentally put this petition in her briefcase while gathering up some personal belongings. It was pointed out by someone that she had done this. She removed it, but then about two months later she was arrested for violating a Texas law that prohibits destroying, concealing, removing government records, which is a misdemeanor under Texas law. So they get an arrest warrant for her. They book her. She spent a night in jail where she was handcuffed to the bench, and then she brought suit for retaliatory arrest.
The first question is whether Nieves applies to this kind of claim because the plaintiff agrees that there was probable cause for arresting her based off of her putting that government document in her briefcase, but she doesn’t agree that she violated the law. So she wants to be able to show that she was arrested for speech and not for a legitimate law breaking. And her argument as to why Nieves shouldn’t apply is that Nieves involved a case where an officer was sort of making an on the spot arrest decision, and the Supreme Court in that case really focused on what makes those on the spot arrests complicated and more difficult to prove retaliatory motive, where she was arrested in Gonzalez two months later in what she alleges was this premediated plan to have her arrested and booked at the jail, which was an unusual procedure for this kind of misdemeanor.
And so she argues that outside of the on the spot arrest cases, probable cause is not a bar to retaliatory arrest claims. The respondents sort of point out that if that’s right, then you would be more likely to be sued if you took time to get a warrant from a judge rather than if you arrested someone immediately. That doesn’t make much sense to the respondents, and so they argue that Nieves is very clear. It applies to all retaliatory arrest claims.
The second question is if it does apply, what kind of evidence is enough to show that other people broke the same law without engaging in protected speech and were not arrested? Everybody sort of agrees that you can do this by pointing to specific people who broke the law and weren’t arrested. Everybody agrees that you could do this by showing there are common misdemeanors like jaywalking that everybody knows people violated but aren’t arrested for.
And the question really is in a case like this where mishandling government documents is not thought of as a law that people commonly violate but maybe it is, if the theory is that she accidentally put the document in her briefcase, does that sort of fit into the jaywalking example? And then there’s other evidence that she relies on her complaint such as procuring an arrest warrant is an unusual thing for a misdemeanor like this rather than a summons. And the way that the warrant was procured she says was unusual which forced her to be arrested and put in jail rather than a different process that wouldn’t have resulted with her being in jail. The respondents argue that none of that evidence is enough to overcome the probable cause issue because she hasn’t pointed to specific people who also broke this law and were not arrested, and so the question boils down to what kind of evidence is enough.
The last thing that I’ll sort of note is this is a question that’s popped up a lot in different versions, but we have a little bit of a different court now than we did before. Justice Breyer and Justice Ginsburg were both on the case in 2019, and the Nieves case had some concurrences and dissents. And so it’s not real clear where the Court might be headed on this and what the ultimate coalition might look like. Thank you.
Michael Francisco: Thanks. I would just note that I’m not so sure that selective prosecution for mishandling of government documents is that rare these days, but I’ll just leave that one lie for now. And we’ll move on to the next case for the sitting, which will be brought to us by Tony Francois, who’s a partner at Briscoe Ivester & Bazel, and he’ll be talking about the great Texas v. New Mexico and Colorado case, which as a longtime resident of the Mountain West, I’m sure everybody is excited to learn about what’s going on in this very long running dispute.
Tony Francois: Thank you, Michael, and thank you, Nate and to The Federalist Society, for the opportunity to join you all today and talk about this month’s sitting at the Supreme Court. Texas v. New Mexico and Colorado will be argued next Wednesday, and it’s an action between those three states that’s been pending in the Supreme Court under its original jurisdiction for the last 11 years. The United States is an intervener in the action, and the argument next week is over the U.S.’s objection to a proposed consent decree that would resolve the three states’ claims against each other without addressing the United States’ claims against the state of New Mexico.
Now, as with almost all recent original actions over which the Court has been willing to exercise original jurisdiction under its constitutional power to hear cases between states, this is a water dispute between states under an interstate compact. There has been some recent similar original actions over water disputes resolved in the Supreme Court between, for example, Texas and Oklahoma and between Florida and Georgia. One of the features of original actions between states in the Supreme Court is that once the Court agrees to exercise discretionary jurisdiction over the matter, it’s then referred to a special master who conducts the proceedings and then makes recommendation to the Supreme Court for entry of judgment.
And the procedure of this is not that different from in district court a case being tried before a magistrate who then files a recommendation for an Article III district court judge to enter judgment on. The parties do have an opportunity to brief and argue to the Court whether the special master’s recommendation should be adopted. For a variety of reasons, at least in these recent interstate water disputes, the special master’s recommendations have been usually adopted by the Court unchanged.
So Texas v. New Mexico and Colorado, if you know your geography well, you will intuit that this is about control of water in the Rio Grande river, which arises in Colorado, flows through New Mexico, and then hits Texas where it forms the international boundary between the United States and Mexico where the reach of the river that flows along Texas’ southern boundary. Now, there’s been a lot in the news lately about the dangers faced by those illegally crossing the United States’ border over the Rio Grande into Texas and the state of Texas’ efforts to interdict those crossings. The case being argued in the Supreme Court next week between these states actually has a tangential but important relationship to the current border crossings and the arguments over that.
This case involves water agreements among the three states, Texas, New Mexico, and Colorado, the federal government, and the government of Mexico over flows in the Rio Grande River. These agreements are the only reason there’s any water in the Rio Grande flowing past Texas at all for lengthy periods of the year. Early in the 20th Century, the United States entered into a treaty with Mexico to ensure a certain amount of minimum flow in the Rio Grande that would be available for use south of the border.
Partly to implement this commitment, the United States authorized the construction of the Elephant Butte Dam in New Mexico, which is one of the first five federal reclamation projects authorized under the Reclamation Act of 1902. Water from the Elephant Butte Project is delivered to two large water districts, one the Elephant Butte Irrigation District in southern New Mexico, and then the El Paso Water Improvement District in Texas. And then additional flow regulated by the project is released down the Rio Grande to meet the treaty obligations to Mexico.
So that project was authorized in 1905. It’s built. The districts are built out. In 1938, the three Rio Grande states entered into a compact, an interstate compact, under which Colorado would ensure the delivery of a minimum amount of water at the Colorado-New Mexico line and under which New Mexico then ensures delivery of a certain amount of water not to the New Mexico-Texas border but to the Elephant Butte Reservoir within New Mexico. The compact then relies on existing federal obligations under the Elephant Butte Project to deliver project water to the two water districts described previously, and that is the mechanism by which this compact ensures delivery of Texas’ share of the Rio Grande waters.
As has happened frequently in the arid intermountain West region, this compact was adopted at a rather high water point in the 20th Century’s hydrology. For a couple of subsequent decades after the compact was entered into, the region experienced a period of significant prolonged drought, and one of the consequences of this was that groundwater pumping increased significantly in the Rio Grande basin. This had the relatively predictable effect of reducing the timing and volume of flows in the river itself, including into the Elephant Butte Project but also return flows to the Rio Grande downstream of the project. This made it more difficult for the federal government to meet its delivery obligations to the two districts and for Texas to get the amount of water it anticipated under the compact.
Eventually in 2013 the state of Texas filed this original action in the Supreme Court against New Mexico, alleging breaches of New Mexico’s duties under the 1938 compact. And the essence of Texas’ claims is that New Mexico’s allowance of significant groundwater pumping in southern New Mexico since 1938 is depleting the supply of Elephant Butte Project water that would otherwise be delivered to Texas. So the original action Texas asked for relief that would ensure that the amount of water Texas reasonably expected out of the compact based on the 1938 hydrology would in fact get delivered to Texas at the state line.
The United States successfully intervened in the action on roughly the same grounds as Texas’ bill of complaint, and its intervention was to protect its interest in the operations of the Elephant Butte Project more or less unimpeded by groundwater pumping. There was a motion by the state of New Mexico to dismiss the United States’ claims in the original action. In 2018, the Supreme Court unanimously rejected that motion and held that the United States could pursue its claims against New Mexico over groundwater use in that state under the compact despite the United States not being a state party to the compact. And this was in part because of the United States’ interest in fulfilling its treaty obligations to Mexico.
So following that 2018 decision, the case was referred to a special master for trial proceedings which commenced and then were suspended to accommodate settlement discussions with a mediator. Those discussion did not result in an agreement among all the parties but did eventually lead to a side agreement, if you will, between Texas and New Mexico in which the United States was not a party. Those two states then presented the special master with a proposed consent decree.
The decree establishes a couple of things. It sets an agreed upon, between the two states, method of quantifying the annual delivery obligation from New Mexico to Texas of Rio Grande water and then an accounting method for tracking compliance with this delivery obligation and adjusting those duties from year to year. And then the consent decree proposes that the United States play a role in implementing the agreement through its operation of the Elephant Butte Project to facilitate meeting New Mexico’s obligations under the consent decree.
The United States objected to the special master recommending that this decree be entered because it was not a party to and did not -- at least to the United States it was not a consent decree. But the special master recommended adoption of the consent decree to the Supreme Court to resolve all claims in the case. This was over the United States’ objections.
So the special master reasoned that the United States’ claims in this original action against New Mexico are wholly derivative of Texas’ claims and that the United States, therefore, can pursue any other claims it has against New Mexico over water use in that state in another appropriate forum. For example, that might just be an action in federal district court in New Mexico against the state of New Mexico.
So the special master filed the recommendation that the consent decree be entered by the Court. The United States filed an objection, and that objection has three arguments: one, that a consent decree among fewer than all the parties cannot dispose of the claims of a nonconsenting intervener; two, that a court may not impose obligations through a consent decree on a nonconsenting party—so where fewer than all the parties might resolve their claims between each other through a consent decree, the United States argues that that consent decree can’t impose any obligations on a nonparty to the agreement—and finally, substantively, that the consent decree violates the compact by changing the water allocation method between the two states.
The states for their part want the Court to enter the consent decree as the final judgment in the original action. In their view it will resolve the dispute that states raised in this action in a manner satisfactory to the original parties. So they argued for their part that the consent decree is consistent with the 1938 compact because it in their view resolves an ambiguity that’s latent in that agreement about how project water will be apportioned between New Mexico and Texas’ interests. They also argue that any remaining claims that the United States has against New Mexico are justiciable in a suit in federal district court or some other appropriate forum but that its claims in the original action that’s before the Supreme Court are basically coterminous with those of Texas and that if Texas is satisfied by this agreement, then there’s no basis for the ongoing intervener status of the United States and finally that the consent decree imposes no new obligations on the United States, which the 1938 compact didn’t, since that compact also required the United States to operate the project in a way that ensures that Texas gets its share of Rio Grande water.
That’s a summary of what’s going to get argued next Wednesday. My observations about these kinds of cases over the last several years in the Court is that the Supreme Court is very loath to do anything but stamp the recommendations of the special masters to which the cases are referred and that the decisions wind up having a lot less to do with the particular arguments that are getting made and might even be resolved differently if it weren’t an original action and if these were just typical civil procedure questions. But where you’re talking about state water disputes, particularly if the states are happy about it, my expectation is that the Court will be skeptical of the United States’ insistence that the case continue so that its claims can be litigated. Thank you.
Michael Francisco: Thanks, Tony. It seems like this is another situation where the downstream state is griping about not getting enough water. It seems to be a common theme in these matters. I used to carefully follow river flows on the Rio Grande in New Mexico, as it happens, but that was in the Taos Box for white water rafting, which is fortunately well north of Elephant Butte Dam. So that should be safe regardless of what happens here. Our next case that we will discuss is Becerra v. San Carlos Apache Tribe, perhaps an opportunity for an additional entry into what I call the Gorsuch canon coming out of the Court, and discussing that will be Jennifer Weddle, who is a shareholder at Greenberg Traurig.
Jennifer Weddle: Thank you so much, Mike, and thanks to The Federalist Society for having me today. Note I too appreciated Tony Francois’ presentation as a Coloradan where we have a good foot of snow in the city of Denver today, so I’m resisting the urge to try to hoard it from all flowing down to New Mexico and Texas. But we’ll watch that case with interest.
I’m talking to you today about Becerra v. San Carlos Apache Tribe and Northern Arapaho Tribe, two consolidated cases that are set for oral argument on March 25 where we again enter the exciting world of contract healthcare costs and statutory interpretation. The case is focused on the Indian Self-Determination and Education Assistant Act, commonly known as ISDA or ISDEA. And that statute permits eligible Indian tribes to contract with the federal government to assume responsibility for federal programs, including healthcare programs administered for the benefit of Indians.
Broadly speaking, what ISDEA does is sets up a mechanism where tribes can stand in the shoes of the federal government to deliver services that the federal government is otherwise required to provide on Indian reservations. Upon entering into an ISDEA contract for healthcare, a tribe is entitled to the appropriated funds that the Indian Health Service, or IHS, would have otherwise allocated to the federal programs. The act also requires the IHS to pay contract support costs, funds that are added to the appropriated amount to cover the cost of activities that tribes must undertake to operate the transferred program but which are either normally not carried on by IHS when acting as the program operator or which IHS would’ve provided from sources other than the appropriated funds transferred under the contract. Separately, contracting tribes are permitted to collect payment from third party payers like Medicare, Medicaid, and private insurers, when they provide healthcare services to covered individuals pursuant to their ISDEA contracts.
The question before the Court is whether IHS must pay those contract support costs not only to support IHS funded activities but also to support the tribes’ expenditures of income collected from third party healthcare payers. So hopefully, that’s clear. Are you standing in the shoes of the federal government for all purposes, or are you only standing in the shoes of the federal government for those contract purposes? And how much money is the federal government to provide associated with that responsibility?
In the cases, I represent a large number of tribal amici in support of the respondent tribes, led by the Coalition of Large Tribes, which is an intertribal organization that represents the interests of large land-based tribes with reservations of 100,000 acres or more. There were dozens of tribal amici in the case and not surprisingly, not a single amicus party in support of the United States here.
So why is dry healthcare contracting interesting to the Court? From a tribal perspective, this is really a case about equality, being able to fully step into the shoes of the United States. All the tribes want is the same program funding IHS would have if IHS was still running the program with those billings and collections. IHS, when it’s running the program, would be spending all of that money on the program, and that is all the tribes are seeking to do in these cases, nothing more and nothing less.
In ISDEA itself, Congress recognized that tribes incur a wide range of overhead costs that a federal agency does not incur when carrying out the federal functions. Much of that is common to the sorts of overhead costs that any federal government contractor incurs, like auditing, reporting, insurance, government compliance costs, etc. Tribes also incur a variety of costs for services that a particular agency gets from sister agencies, like GSA or OMB or DOJ. Tribes don’t have access to those services. They have additional costs that IHS just does not have.
And at the end of the day, these are unique government contracts that are designed to put tribes on an equal level with IHS in terms of program dollars from whatever source. These suits seek to enforce the special ISDEA mandate to add extra overhead costs on top of the program dollars so that all program dollars go into program services. The focus for the tribes is on not being penalized by having to take on that extra tribal overhead out of the program dollars when the federal agency would get to use all of the program dollars on the programs.
The federal government’s counternarrative here has prevailed at the D.C. Circuit and before three district court judges, as well as before Judge Baldock on the Tenth Circuit, so it definitely has some force. Basically, the government reads the ISDEA as requiring only overhead reimbursement for the portion of the contracted program that IHS funds, not the portion that Medicaid or Medicare or third party insurance funds. The government does not consider it dispositive that the tribe is required by the same act to spend Medicare, Medicaid, and private health payments on more healthcare for Indians. They say that the government has to focus on the funding aspect, not on the contracted program. And they point to what they say is inconsistencies within the statute itself or some ambiguities within the statue itself.
The D.C. Circuit at least found that convincing, so three different cases below and a definite circuit split. The first in time amongst those was a D.C. Circuit opinion in a case called Swinomish Indian Tribal Community v. Becerra in 2021 before Judges Katsas, Rao, and Walker. And Judge Walker wrote the opinion for the court finding for the United States, ruling that there was no requirement for the United States to also pay on contract support costs for that third party generated revenue. And they focused only on the contracted function. That case is not directly before the Court, rather the grant of cert was on both a Ninth Circuit case, the San Carlos Apache case, and on a Tenth Circuit case, the Northern Arapaho Tribe case. In both the Ninth and Tenth Circuit, the tribes one but for different reasons.
In the Ninth Circuit, the four judges Hawkins, Watford, and Paez -- they found that the tribe really needed to demonstrate that the statutory language is ambiguous, that the tribe had met this burden, and that because the statutory language was ambiguous the Indian canon applied and that language had to be construed in the favor of the tribe and therefore that ISDEA requires payment of contract support costs for third party funded portions of the federal healthcare program operated by the San Carlos Apache tribe. They reversed Judge Wake’s decision in the district of Arizona to dismiss the case.
In the Tenth Circuit the Northern Arapaho Tribe also had their case dismissed before Judge Freudenthal in Wyoming. And the panel on the Tenth Circuit included Judge Moritz, Judge Baldock, and Judge Eid, and there for different reasons Judge Moritz and Judge Eid also ruled in favor of the tribe, Judge Moritz finding that the tribe presented a reasonable interpretation of the ambiguous statute, that the canon dictates that the statute had to be construed in favor of the tribe, whereas Judge Eyed essentially said the statute is complex. But that doesn’t mean that it’s ambiguous, and it’s unnecessary to resort to the Indian canon of construction.
But under either Judge Moritz’s view of Judge Eid’s view the administrative expenditures associated with collecting and expending revenue obtained from third party insurers would qualify as reimbursable contract support costs. Judge Baldock dissented, acknowledging the complexity of the statutory scheme, and I particularly liked how he reflected on this saying “My colleagues and I cannot reach a consensus on its meaning. This fact alone speaks volumes about Congress’ ability to draft a coherent statute.” So very frustrated Judge Baldock. And then Judge Eid noted that the statutory scheme here is undoubtedly complex and requires a good deal of analysis, but that does not mean that it is ambiguous. In her view, the tribe presents the only reasonable construction because the government’s interpretation vitiates much of the statutory scheme.
A few things that are interesting to note here, one is it’s a battle of the former Thomas clerks. You’ve got Judge Katsas and Judge Rao on one side and Judge Eid on another. This also happens to be the first opinion from Judge Eid on review at the court, so court watching nerds will enjoy this one.
And another thing to note, this is yet another case where the Department of Justice is taking a contrary position to tribal rights. That’s something we’ve seen again and again from the Biden administration despite a lot of lip service about respect for tribal sovereignty. We saw this last term in the case Navajo Nation v. United States about the Navajo Nation’s water rights. We see it again here on something equally fundamental, the well-established federal responsibility for Indian healthcare. And that’s something that’s troubling to a lot of tribes.
A third thing that’s interesting, the tribes have been granted bifurcated argument, so you’ll hear both from Lloyd Miller, counsel for the San Carlos Apache Tribe, and Adam Unikowsky, counsel for the Northern Arapaho Tribe. And really the last thought here for the government contracting lawyers in the audience, you certainly are all familiar with the concept of program income, income earned in the course of administering a reimbursable contract. You may recall that a standard government contracting clause requires that all program income be folded back in and used to provide additional services under the government contract.
That is the situation with Indian tribes running ISDEA contracts, so the situation tribes are dealing with in these cases is not unfamiliar to routine cost reimbursable government contractors. But the federal government here is resisting acknowledging the G&A costs, the overhead costs, for the enlarged contract. And I say that really just as a point of interest for those doing government contract work that there might be more to see here in that respect. Back to you, Mike.
Michael Francisco: Thank you for that summary. Far be it from me to defend the Biden administration, but I would note that Department of Justice, the United States taking positions hostile to tribal rights I believe, if memory serves me correct, is a policy or practice that might’ve predated the Biden administration. Sticking with the geography theme, I would also note while I don’t know which Thomas clerk will be upheld in this particular situation, I am confident that Judge Eid and Judge Paez in the Ninth and Tenth Circuit have a lot more tribes in their circuits than Judge Katsas and Rao.
With that, we’ll move on to the next case to be argued this term, and that’s going to be Harrow v. Department of Defense. And Eli Nachmany, who’s an associate at Covington & Burling, is going to tell us about that case.
Eli Nachmany: Thank you so much, Michael, and thank you to The Federalist Society for the opportunity. I should note at the outset that nothing I say here necessarily reflects the views of my employer, and also, I should disclose I was part of a team that filed an amicus brief in this case on behalf of the National Veterans Legal Services Program in support of the petitioner Harrow. So this case is about jurisdiction, and Stuart Harrow was a Department of Defense employee. He was furloughed from his job for a period of time, and he challenged that furlough at the Merit Systems Protection Board.
Now, after an administrative judge initially affirmed the furlough, the Board took a little bit of a while to adjudicate his case. Now, over the course of the Board considering Harrow’s case, years went by, and Harrow changed email addresses. He didn’t inform the court that he had changed email addresses, and when the Board issued its decision, Harrow didn’t get it via email.
In its decision, the Board noted that Harrow had 60 days to appeal, but Harrow only found out about the Board’s decision on its website after that 60 day clock had expired. At that time, once he found out about the decision, he then appealed to the Federal Circuit, but his appeal was 60 days after that 60 day deadline had expired. So relying on its own precedents, the Federal Circuit concluded that it couldn’t hear Harrow’s appeal because he missed that 60 day deadline.
Harrow wants the court to excuse his failure to meet the deadline given the email issue. He’s not represented by a lawyer, it should be noted, and that’s like many folks in these kinds of cases, including many veterans. The Federal Circuit determined it didn’t even have the discretion to excuse the missed deadline because it believed that Congress only gave the Federal Circuit jurisdiction to hear timely appeals from the Merit System Protection Board.
And so that brings us to the core issue in this case, and that is whether that deadline is jurisdictional. It’s an administrative law case to be sure, but really, it’s a statutory interpretation case. And starting with the text, this is 5 U.S.C. 7703(b)(1)(a), and it goes like this. “Except as provided in subparagraph B in paragraph 2 of this subsection” -- and those paragraphs and subsections deal with stuff that’s not relevant to this case. So except as provided there “a petition to review a final order or final decision of the Board shall be filed in the United States Court of Appeals for the Federal Circuit. Notwithstanding any other provision of law, any petition for review shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.”
Now, if that language is jurisdictional, meaning that it strips the Federal Circuit of jurisdiction even to hear something filed after the 60 day deadline, then the Federal Circuit has no discretion to excuse Harrow’s late filing. That’s because Congress would’ve been the one that already decided that nothing can excuse a late filing. And by contrast, if that language is not jurisdictional, then the court has a little bit more flexibility, and it could do something called equitable tolling, allowing this case to proceed.
So where are the parties on this? Well, Harrow says, of course, that the 60 day deadline is non jurisdictional. He analogizes it to what we’d call a claim processing rule. The way the Supreme Court has distinguished between claim processing rules and rules of jurisdiction is the Court has often looked for a clear statement, that Congress clearly states that the statute, the deadline, whatever it is, abrogates jurisdiction for, for example, late appeals.
Harrow points to some other jurisdictional statutes, and those statutes use words like “if,” “unless,” or “where” to specify the kinds of cases that a court like the Federal Circuit can hear. By contrast here, the statute discusses the petitioner’s duty and uses the term “shall.” It shall be filed. The government on the other side of this takes the position that the 60 day deadline is indeed jurisdictional. The government analogizes to Bowels v. Russell, which is a case that held that the filing of a notice of appeal from a federal district court to a federal court of appeals is jurisdictional.
Now, you’ll note the contrast; right? You have a federal Article III court to a federal Article III court. Here, it’s the Merit System Protection Board, an agency, to a federal court of appeals, the Federal Circuit. The government also suggests we should look to cross-reference statute 28 U.S.C. 1295(a)(9). That statute grants the Federal Circuit jurisdiction over certain appeals “pursuant to” Section 7703(b)(1). In the government’s view, the pursuant to language requires rigorous adherence to those 7703(b)(1) requirements.
Now, there’s some other disputes going on in this case. The parties dispute the import of a case called Lindahl v. OPM. That’s a Supreme Court case from the 1980s, interpreted 7703(b)(a) as jurisdictional, but it didn’t speak to (b)(1)(a), which is the particular statutory provision at issue here. The government also suggests that even if that statutory deadline is not jurisdictional, it’s nevertheless mandatory. And so equitable tolling wouldn’t be appropriate in this case. Harrow says that that argument is outside of the question presented and is forfeited by the government so not appropriate to get into here.
So those are the parties’ arguments. We’ll see what the Supreme Court does. I think there are two interesting elements of this case that may speak to some broader administrative law trends or statutory interpretation trends at the Supreme Court. One of these is clear statement rules appear to be back at the Supreme Court, or at least more robust in recent years.
We saw a couple terms ago West Virginia v. EPA the major questions doctrine essentially a clear statement rule. Another clear statement rule is the federalism canon of Sackett v. EPA, and in these cases the Court says if Congress doesn’t speak clearly about X, we’re not going to assume X. That might be delegation of a major power. That might be upsetting the balance between state and federal government, or here it might be abrogated jurisdiction. So we’ll see if the Court uses this case to say a little bit more about clear statement rules.
I’m interested in whether Justice Barrett will say something or maybe even write separately, sort of like her concurrence in Biden v. Nebraska. She also has an interesting law review article in the Boston University Law Review from several years ago raising the question whether clear statement rules are entirely consistent with textualism. And so the Court which proports to be textualist will have to grapple with the question about clear statement rules’ congruency with textualism.
There’s another interesting thing going on here, and I talked about it a little briefly earlier. This analogy of notices of appeal from one Article III court to another, that could be a fraught analogy for some justices, including Justice Thomas. So Justice Thomas in his concurrence in Axon v. FTC, a recent case, eschews some of that analogy between Article III courts and administrative agency tribunals that are set up to do adjudications. Now, that Axon concurrence essentially grounds that skepticism in the public/private rights distinction, and so how that maps onto this case is a bit unclear. But the idea that, oh, this is just the same thing as a notice of appeal from a federal district court to an Article III court of appeals, it might not be so simple, at least for Justice Thomas.
Finally, I’ll note our amicus brief, given the substantial knock-on effects for veterans that a decision in this case could yield, the amicus brief suggests the application of the pro veteran canon if the Court finds the law ambiguous on jurisdiction. Multiple statutory schemes for veterans could be affected based on how the Court decides this case and whether equitable tolling is indeed available for this particular statute or if we’re just talking about a jurisdictional law.
Michael Francisco: Thanks, Eli. We appreciate that summary. Try as I might, I can’t figure out how to make a geography connection for this case, but it does sound like a decision that could be important precedent for many other jurisdictional claims processing disputes that are probably litigated in far greater numbers than the Merit System Protection Board decisions, as important as those may be.
Moving on to the last two cases that’ll be argued, I’ll give some brief comments on them. The Food and Drug Administration v. Alliance for Hippocratic Medicine is going to be argued on March 26. This decision is very complex administratively and relatively well-known through press reports to be the first abortion related case to go to the Court after the Dobbs decision. I would note that Erin Hawley is going to be arguing the case for the group of doctors that is challenging these particular administrative decisions. As best as I can tell with some quick research, this would be the first wife of a senator to argue a case in the Supreme Court. Ms. Hawley of course is an excellent New Mexico Supreme Court law clerk herself, and she’s been involved in this case since it was in the lower courts.
The decision itself is a series of challenges about whether the challengers have a right to bring a lawsuit against the FDA’s 2016 and 2021 actions that increased access to mifepristone—that’s a pill that produces an abortion—and whether those actions were unreasoned and whether the district court properly granted administrative relief. This case came up originally before Judge Kacsmaryk in Texas who partially enjoined various actions that the FDA has taken with regard to this judge, and then it went up to the Fifth Circuit which upheld in part and did not uphold part of that injunction. Interestingly, the injunction itself was actually stayed by Judge Kacsmaryk, so it’s never gone into effect even though it has been litigated on the shadow docket so to speak all the way up to the Supreme Court.
Originally, the case featured a challenge to a 2000 FDA action. That seems like a long time ago from an administrative law standpoint, and it was, although there was a 2002 challenge to that rule, a citizens challenge brought by these particular plaintiffs. And for reasons that are still unclear to me, that challenge was not rejected by the FDA until 2016, so quite a long delay in that challenge being rejected. Nonetheless, the Fifth Circuit and the Supreme Court haven’t retained that part of the challenge in this appeal.
What’s at issue are different changes to the rules that the FDA made in 2016. They changed the rules governing this particular drug to remove various restrictions that were put on that drug in the original 2000 decision and to eliminate some of the reporting requirements. That was, again, challenged by these petitioners in 2019, and then in 2021 the FDA again did an action where they reduced restrictions on using mifepristone. That nonenforcement decision by the FDA was in part related to the COVID-19 pandemic, and they did away with the in person dispensing requirements for mifepristone. That second decision by these petitioners was denied in 2021, and then this case has been off to the races since then.
So it has quite a complex administrative background and is really an administrative law case, not a case that directly implicates the constitutional law issues that came up in Dobbs. I would just note out of interest that in this case they actually denied motion for leave to file an amicus out of time, which I don’t think I’ve ever seen before. And the state of Missouri intervened or moved to intervene, and that also was denied.
The last case set for argument this term is Erlinger v. United States on March 27, and the issue presented in that case is whether for purposes of the Armed Criminal Career Act, a frequent flier at the Supreme Court, which imposes enhanced sentences for unlawful possession of a firearm in the defendant has three convictions committed on occasions different from one another, the language in the statute, should a jury or judge decide whether the crimes occurred on different occasions? I do not know the answer to that question. And with that, that concludes our summaries of the ten cases being argued this term, and we will go ahead and switch the discussion format to do some questions and answers from the panelists.
And again, anybody who is watching, you can submit questions on the question and answer feature of Zoom, and we will take a look at those and probably pass those along to the appropriate panelists as well. I will take the moderator’s prerogative to ask a couple questions from the various panelists. And I guess the first question I would ask would go to Bob, who gave us the summary of the NRA case. And I noted here that the Solicitor General filed an amicus brief in support of New York State, but I have really two questions. And then secondly is while this is a gun case in subject matter, it is a free speech case in constitutional law. And I wonder if you would comment on whether we’re likely to get any pontificating about the Bruen case as part of these decisions, but firstly, I’d like to know what in the world the Solicitor General is doing taking a position on the New York use of their coercive powers.
Robert Corn-Revere: Well, I think it’s tied to the Solicitor General’s interest in this range of free speech cases that are before the Court this term that I mentioned earlier. As I said, the Solicitor General did participate in the NetChoice cases involving the platform regulations in both Florida and Texas and then in the cases that are up on Monday, they include the jawboning issues that relate to platforms in the Murthy case but also then in the NRA case. And I think it’s that common link between those four cases and the relationship between government and private actors or private speakers that has attracted the Solicitor General’s interest.
Michael Francisco: Thank you very much for that. The next question I’d like to go to Brett talking about the Gonzalez v. Trevino case, and the question we have is whether the Court has shown any interest in drawing a clear distinction between retaliatory arrest cases and cases involving administrative action rather than criminal but which also fall under the broader category of First Amendment retaliation such as retaliatory employment or licensing decisions that are taken in retaliation of speech.
Brett Nolan: Yeah. So the Court has drawn a distinction between retaliatory arrests and retaliation claims more generally. The Court has also drawn a distinction -- I think the first distinction that the Court drew was actually for retaliatory prosecutions and then extended -- in Nieves extended that to retaliatory arrests. And so generally speaking for retaliation claim outside of the arrest context when you’re not dealing with this probable cause issue, you have a case called Mt. Healthy I think is what it’s called that establishes the framework for bringing that kind of claim, proving motive and an adverse consequence.
And the retaliatory prosecution and the retaliatory arrest context, the Court has drawn different rules because of the unique problem that the Court has seen in terms of proving motive when things like probable cause exist or when you have independent actors like prosecutors deciding to charge when the prosecutor’s not the defendant, which cuts off the chain of causation against an officer. So this case is very specifically focused on the retaliatory arrest issue. And part of the argument is whether or not -- or I guess part of the issue that the Court is trying to resolve is whether or not some retaliatory arrest cases like this one should be treated more like the general retaliation claims if you have the kind of evidence you need to overcome the probable cause issue.
Michael Francisco: Thanks, Brett. I wanted to add to that question and ask if you have a prediction on how this case is going to come out.
Brett Nolan: I don’t know if I have much of a prediction. I think that if I were to just predict something I think the petitioners will win, but I’m not sure how they will. I think there’s a good chance that the Court might say that the sort of different kinds of evidence beyond the evidence that a specific person has not been arrested for the same thing -- the Court might go that route, which is the first of the questions presented, and say that Nieves does apply to all kinds of retaliatory arrest claims. But that’s just a prediction. I don’t know if I have a lot of sense for it, and I’m sure that I’ll be laughing at myself come June when we see what the Court actually does.
Michael Francisco: Well, thank you for that. I’d like to move and ask Jennifer on the Becerra v. San Carlos Apache Tribe can you give us a sense on how much money is at issue in this particular dispute? I gather it’s a statute that many of us probably don’t have a lot of familiarity with. Obviously, there’s cases in at least three different districts you talked about. I’m just curious how big of an issue financially is this?
Jennifer Weddle: So I don’t have a nice round number to provide you as it varies tribe by tribe by tribe where typically tribes will take on discrete functions, such as a behavioral health program, different clinics, dental clinics, those pieces. And the question is just really can they be made whole and reinvest the contract support cost monies in the program the exact same way the United States does? Or when they’re standing in the shoes of the United States, do they somehow have some lesser access to the contract support cost resources? Which could be very significant in terms of what the third party payers provide for Indian healthcare.
Michael Francisco: Great. Thank you for that. The next question I’d like to move to is, again, for Bob, and this is on the Murthy v. Missouri case from the audience. And the question is to what extent do you all believe that the Court will lean into Section 230 versus the state action doctrine and its opinion in Missouri v. Biden?
Robert Corn-Revere: Yeah. Interesting question. I’m not sure that in Missouri v. Biden or in Murthy v. Missouri now that the Section 230 issue is likely to come up. It did come up in the arguments over NetChoice. Justice Gorsuch in particular had some questions asking about to what extent the Section 230 issue complicated whether or not there was a First Amendment issue here. But in this case, we’re talking about whether or not the government’s actions crossed the line from government speech into coercion or excessive cooperation. Private platforms were not the defendants in this case.
One of the things that I think is interesting is the way the question was presented by the Surgeon General in asking when the actions of private platforms may become state action, which was not the question below. The question below was when the exercised government speech became coercive, at what point you cross that line and whether or not there was excessive cooperation. So I’m hoping at least that the Court will refocus on that, refocus on the questions that were presented below, the pure Bantam Books v. Sullivan questions. And in doing that, I don’t think there’ll be room for the Court to get into the Section 230 question, which was of interest to at least one or two justices in the NetChoice cases. But I don’t think it goes beyond that.
Michael Francisco: Great. And then, Bob, I have a follow-up question speaking of attempts to predict what the justices may do in this case. I saw that there was a dissent from the grant of the stay from Justices Alito, Thomas, and Gorsuch. I believe Justice Alito wrote that where he called that shadow docket decision unreasoned and highly disturbing, which I would characterize as fairly high energy for how these dissents tend to go. And I’m wondering what you make of that dissent and what you might think of how this case is going to break down between the justices.
Robert Corn-Revere: Well, it’s hard to -- I was a little puzzled by that dissent as well, and I chocked it up to the fact that this is one of those cases that has a high political valence to it. It arose from a partisan dispute and has been characterized that way, and I think that’s translated into how it was treated as it was coming up through the shadow docket. My hope is that we’ll be -- as the Court deals with it as a whole that it will focus back on the core First Amendment principles that are not partisan questions, that whatever ruling it issues on when government action and jawboning crosses the constitutional line would be equally applicable to administrations of either political stripe.
Michael Francisco: Great. Thank you for that. There’s been a question raised about the FDA v. Alliance for Hippocratic Medicine case that I spoke about at some level of detail, and that is how the interstate commerce clause issues may come up in this case. I think there are potential issues with this general dispute because some of the changes that are being challenged are about increasing access to mifepristone, and there are some states that generally want to make it harder to get mifepristone by mail, for example, and questions on whether the federal government can stop that from happening. Those commerce issues are certainly lurking in this dispute, I believe, but they’re probably going to come up in follow-on litigation.
And I should have mentioned in my brief summary of the case while it has a complex procedural history, it’s also relatively in the weeds as far as APA challenges go. And looking at the quality of the evidence before the FDA -- and there’s a lot of disputes about which science counts and doesn’t count, and as with all things abortion it seems to be hotly contested in all of those details. I think I will make one last check that that may be all the questions we have for the panelists. I certainly thank everybody for coming and sharing their insights and analysis of the cases and The Federalist Society for giving me an opportunity to host.
Nate Kaczmarek: Well, excellent. Our thanks to Michael and our great panel for their shared expertise this afternoon and a great and thorough job by all. We look forward to having all of you back for future FedSoc programs. For our audience, your feedback is always welcome by email at [email protected]. With that, have a great day. We are adjourned.
